STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1708

)

NANCY MOSS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Jacksonville, Florida on August 18, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Stanley B. Gelman, Esquire

207 Washington Street Jacksonville, Florida 32202

ISSUE

Whether Respondent Nancy Moss' cosmetology instructor's license should be suspended or revoked, or whether other disciplinary action should be taken by Petitioner against Respondent for alleged violation of Section 477.025(1), Florida Statutes (1980 Supplement), and Section 477.028(1)(b), Florida Statutes (1979).

PRELIMINARY STATEMENT

An Administrative Complaint was filed against Respondent Nancy Moss by the Department of Professional Regulation, Board of Cosmetology seeking to take disciplinary action against her. Respondent Moss requested an administrative hearing.

Petitioner called four (4) witnesses and offered one (1) exhibit which was entered as evidence. Respondent called six (6) witnesses and offered one (1) exhibit which was entered as evidence. Petitioner submitted Proposed Findings of Fact and Conclusions of Law and Recommendation together with a Memorandum of Law, and Respondent submitted a Proposed Order and Memorandum of Law, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this

order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

FINDINGS OF FACT

1. On May 28, 1981 Petitioner Department of Professional Regulation, Board of Cosmetology filed an Administrative Complaint seeking to suspend or revoke or take other disciplinary action against Respondent Nancy Moss as licensee and against her license as a cosmetology instructor. The complaint charged Respondent Moss with three (3) counts of misconduct for holding herself out as a cosmetologist and a cosmetology instructor and for operating a cosmetology salon without being duly licensed. Respondent holds an inactive cosmetology instructor's license #1C 0083468. The inactive receipt was dated July 31, 1980 and expired June 30, 1981 (Petitioner's Exhibit 1).

   
   

2. Respondent was the owner and operator of the American Hairstyling Academy, a barber school duly licensed by the State Board of Independent Post- Secondary Vocational, Technical, Trade and Business Schools during the time pertinent to this hearing. The school ceased operation on July 1, 1981.

   
   

3. The Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools, a witness for Petitioner, made an official visit to the American Hairstyling Academy on January 21, 1981. He saw a woman sitting in one (1) of the six (6) or seven (7) chairs in the facility with rollers in her hair and saw Respondent Moss performing a service on the woman's hair. After the Director had identified himself, Respondent gave him the American Hairstyling Academy school records to examine and then proceeded to complete her work on the woman's hair. The Director noticed a room with clothes hanging on racks and trinkets in a counter with a sign, "Boutique," near the door. The room had been previously designated as a classroom for the barber school. Before the Director left, one (1) other person entered the premises. (Transcript, pages 12 through 34.)

   
   

4. The Supervisor I, Office of Investigative Services, Jacksonville, Region II, made an appointment for a shampoo and set with Respondent Moss on February 4, 1981 at the American Hairstyling Academy. She appeared at the designated time, and Moss performed the shampoo and set. The Supervisor saw a room in which clothes were hanging and saw an area beyond that room which was separated with a cloth curtain. Before the Supervisor left, one (1) other person entered the premises. The Supervisor paid for the hair service and left the school. (Transcript, pages 34 through 41.)

   
   

5. An investigator for Petitioner saw two (2) women at the academy, one

   1. having her hair serviced and one (1) waiting for Moss. The investigator was told by Respondent that teaching was done at the school and that there were two

   2. students enrolled, but no student records were produced for her to examine. She saw no blackboards or what she recognized as a classroom. (Transcript, pages 41 through 51.)

   
   

6. A witness for Respondent had his hair washed, conditioned and cut many times in Respondent's barber school by students. He has had the same service done by the Jacksonville Barber College. (Transcript, pages 62 through 67.) A former student stated that she attended the American Hairstyling Academy for two

   (2) months, and Respondent Moss supervised the work done by the students. She attended classes with five (5) other students in a classroom at the American Hairstyling Academy and checked out books from the library, but she did not complete the course. (Transcript, pages 67 through 71.) Respondent called another witness who had had students at the barber school work on her hair on approximately ten (10) different occasions, but Respondent Moss did not work on her hair. (Transcript, pages 71 through 74.)

   
   

7. The Hearing Officer finds that the licensed barber school owned and operated by Respondent Moss prior to July 1, 1981 had a few students, six (6) or seven (7) chairs, a small area that was used by students and Respondent for instruction and a minimal library. The testimony and evidence presented by both parties show that Respondent Moss was a practicing barber in a licensed barber school. Her acts could also be classified as practicing cosmetology although she said she practiced barbering.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

9. Section 477.013(6), Florida Statutes (1979), Definitions -- provides:

   
   

   (6) "Cosmetology" means the mechanical or chemical treatment of the head, face, and scalp for aesthetic rather than medical purposes, including, but not limited to, hair shampooing, hair cutting, hair arrang- ing, hair coloring, permanent waving, hair

   relaxing, or hair removing, for compensation.

   
   

10. Section 477.028(1)(b), Florida Statutes (1979), Disciplinary proceedings.-- provides:

    
    

    1. The board shall have the power to revoke or suspend the license of a cosme- tologist or a cosmetology instructor licensed under this chapter or to reprimand, censure, deny subsequent licensure of, or otherwise discipline a cosmetologist or a cosmetology instructor licensed under this chapter in either of the following cases:

       (b) Upon proof that the holder of a license is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice or instruction of cosmetology.

       
       

11. Section 477.025(1), Florida Statutes (1980 Supplement), Cosmetology salons; requisites; licensure, inspection.-- provides:

    
    

    1. No cosmetology salon shall be permitted to operate without a license issued by the department.

12. Section 476.034(1), Florida Statutes (1979), Definitions. -- provides:

    
    

    1. "Barbering" means any of the following practices when done for remun- eration and for the public, but not when done for the treatment of disease or physical or mental ailments: Shaving, cutting, trimming, coloring, shampooing, arranging, dressing, curling, or waving the hair or beard or applying oils, creams, lotions, or other preparations to the face, scalp, or neck, either by hand or by mechanical applicances.

The definitions of "barbering" and "cosmetology" are similar, and it is concluded that the acts of Respondent Moss could be classified under either definition.

It is concluded that Respondent Moss was practicing barbering under the foregoing definitions in her duly licensed barber school, and therefore was not required to secure a license to operate a cosmetology salon. Her cosmetology license had been certified as inactive at her request and, although her acts could also be classified as practicing cosmetology, it is presumed that Respondent Moss acted, as she stated, in good faith and was operating as a barber under Chapter 476, Florida Statutes (1979), with her active school license. Whenever the motive, belief, or intention of any person is a material fact to be proved, direct testimony of such person, whether a party to the action or not, as to what such motive, belief, or intention was is competent." Germania Fire Insurance Company v. Stone, 21 Fla. 555. "'Good faith' means honesty in fact in the conduct or transaction concerned." Subsection 671.201(19), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondent Nancy Moss be dismissed.

DONE and ORDERED this 4th day of November, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the clerk of the Division of Administrative Hearings this 4th day of November, 1981.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Stanley B. Gelman, Esquire

207 Washington Street Jacksonville, Florida 32202

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001708

Orders for Case No: 81-001708